ATC220225: Report of the Portfolio Committee on Home Affairs on the Electoral Laws Second Amendment Bill [B 34 – 2020]), dated 22 February 2022

Home Affairs

Report of the Portfolio Committee on Home Affairs on the Electoral Laws Second Amendment Bill [B 34 – 2020]), dated 22 February 2022

The Portfolio Committee on Home Affairs (“the Committee”), having considered the Electoral Laws Second Amendment Bill [B 34 - 2020] (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports as follows:

1.  On 11 June 2020, the Constitutional Court, in the New Nation Movement NPC and others v President of the Republic of South Africa and others [2020] ZACC 11 CCT 110/19 (“the New Nation Movement case”), declared the Electoral Act, 1998 (Act No. 73 of 1998) (“the Electoral Act”), to be unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. The declaration of unconstitutionality was suspended for a period of 24 months to afford Parliament an opportunity to remedy the defect in the Electoral Act giving rise to the unconstitutionality.

2. The Electoral Laws Second Amendment Bill [B34-2020] (“the Private Member’s Bill”), sponsored by Hon. M G P Lekota, was tabled and referred to the Committee on 4 December 2020 for consideration and report. The Private Member’s Bill seeks to address the New Nation Movement case and gives effect to section 19(3)(b) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) by, inter alia, making provision for adult citizens to stand for public office as independent candidates and to contest national and provincial elections as independent candidates. The Private Member’s Bill further proposes that elections happen in 52 constituencies using an “open list” proportional representation system.

3. On 9 February 2021, the Committee met with the sponsor of the Private Member’s Bill, Hon. Lekota, in order to receive a briefing on the Bill. The briefing comprised a detailed explanation of what the Private Member’s Bill entailed and how it sought to make provision for independent candidates in the electoral system for the National Assembly and the provincial legislatures.

4. In order to address the New Nation Movement case, the Minister of Home Affairs appointed and established a Ministerial Advisory Committee (“the MAC”) to identify the extent of the constitutional provisions affected by the New Nation Movement case; develop policy options on the electoral system that addresses the defects of the Electoral Act as identified by the New Nation Movement case; consult with relevant stakeholders; and to recommend possible policy options.  On completion of its work, the MAC recommended two possible policy options to the Minister, namely:

Option 1: the slightly modified multi-member constituency (MMC) which accommodates independent candidates but requires relatively minimal changes to the legislation;

Option 2:  the mixed-member model incorporating single member constituencies.  This option entails combining the first-past-the-post and proportional representation, making it a mixed-member proportional (MMP) system and involves electing MPs from 200 single-member constituencies and the remainder from a single multi-member constituency.

5. After considering these options, the Minister introduced the Electoral Amendment Bill [B1- 2022] (“the Executive Bill”) into Parliament on 10 January 2022, which Bill was also referred to the Committee for consideration and report.  The Executive Bill also seeks to address the New Nation Movement case by, inter alia, providing for the nomination of independent candidates to contest elections in the National Assembly and provincial legislatures; and providing for how regional seats and compensatory seats will be allocated. 

6. On 8 February 2022, the Minister, together with his advisers, presented a detailed briefing on what the Executive Bill entailed.  At this meeting, the Minister also provided his comments and input on the Private Members’s Bill sponsored by Hon. Lekota.  In his input, the Minister presented the similarities and also the differences between the Private Member’s Bill and the Executive Bill.  The Minister particularly highlighted that the Executive Bill targets the constitutional problem raised in the New Nation Movement case. It does so in a precise and minimalist way making only such changes that are necessary to the Electoral Act to accommodate independent candidates in the electoral system; while the Private Member’s Bill is more about general electoral reform proposing constituencies and an “open list” proportional representation system.  Furthermore, it was also explained that the Private Member’s Bill would create additional administrative tasks on the Independent Electoral Commission (namely, splitting the country into 52 constituencies and also being required to register independent candidates) as well as on independent candidates (namely, requiring them to register with the Commission first) – which tasks are not required in terms of the Executive Bill.  The differences in the manner in which seats will be filled and allocated as contained in the two Bills was also presented. The Minister also indicated that the Private Member’s Bill might not be possible to pass and implement in time for the 2024 elections given the vast amount of work that would have to be done.

7. On 15 February 2022, the Committee deliberated and considered the Private Member’s Bill, in light of the briefings it had previously received as well as the input made by the Minister at its meeting of 8 February 2022.  At this meeting of 15 February 2022, the Committee was also informed that Hon. Lekota agreed with the comments made by the Minister on the Private Member’s Bill and hence had no further comments or input to make. 

8. The Committee hence decided that it would not proceed with the Private Members Bill as introduced by Hon. Lekota in part because of the far broader wide-ranging substantive changes it introduces and the fact that these would not likely be passed and implemented in time for the 2024 elections.

9. The Committee wishes to thank Hon. Lekota for proposing and introducing the Private Members’ Bill. Although the Committee will not proceed with the Private Member’s Bill, some of the issues raised in the Private Members’ Bill could quite well find expression in the Executive Bill following the consideration of public submissions, the public participation process and hearings, and the Committee deliberations.

 

Report to be considered.